Joyner v. Sugg
Decision Date | 05 May 1903 |
Parties | JOYNER et al. v. SUGG et al. |
Court | North Carolina Supreme Court |
On petition for rehearing. Granted, and former opinion reversed and judgment below affirmed.
For former opinion, see 131 N.C. 324, 42 S.E. 828.
This is a petition to rehear and review the judgment of this court rendered at the last term in the above-entitled case. It involves a matter of the greatest importance, as it relates to the ever-recurring question of the extent of the homestead right, and requires us to declare and decide what are the nature and characteristics of that creature of the Constitution known as the "homestead," and what right in or control or dominion over it the owner has and enjoys under the terms of the instrument by which it was brought into existence.
The facts in regard to this particular case, as we gather them from the record, are those stated by the court in the prevailing opinion delivered at said term, with slight modifications, not now, perhaps, material to be considered in connection with the question to be discussed and decided on the rehearing, and are as follows:
It was held by this court (131 N.C. 324, 42 S.E. 828) that there was no parol trust created by Mrs. Joyner, and that the parol trust raised by the agreement between R. L. Davis and Blaney Joyner was performed by the execution of the conveyance of Davis to J. A. E. Joyner, as directed by Blaney Joyner, so that the question as to the trust is now out of the case, and we have only to determine whether the deed of trust, and the subsequent deed of the trustee to Davis, and of Davis to Mrs. Joyner, vested in her the title to the land described in the deeds, subject only to the right of Blaney Joyner to have and occupy a part of the land, to the value of $1,000, exempt from sale under execution, for the time fixed in the Constitution, or whether the deeds conveyed all of said lands, except the part subject to the exemption; the said part being so excepted from the deeds as that no interest whatever therein vested in Mrs. Joyner. In other words, does the Constitution forbid the sale of the land itself, allotted as property, which shall be exempt from sale under execution, without the joinder of husband and wife in the deed, and the privy examination of the wife thereto, or does it merely prohibit any conveyance, without such joinder and privy examination, which will transfer or convey this right of exemption, leaving the husband free to convey all other interests he may have in the excepted part, to take effect in possession when the exemption has ceased? We unhesitatingly adopt the latter construction as the one which was clearly contemplated by the framers of the Constitution, which has met with legislative sanction, as we shall hereinafter show, and which has been uniformly adopted by this court until this case was decided at the last term.
It is provided in article 10 of the Constitution as follows:
It is perfectly obvious from a bare perusal of these sections that the sole object of the framers of the Constitution was, not to set apart property which should not be sold by the owner, but to exempt the property from execution, and thereby put it beyond the reach of creditors for the time specified. Their only care and solicitude were to protect him who had been or might be overtaken by misfortune, and to save his family from utter impoverishment and destitution. They did not intend to tie the hands of the head of the family so that he could not dispose of his property, as they well knew that the jus disponendi would always be one of the most valuable qualities of the estate; but it was their purpose to bind the hands of the creditor so that he could not lay them upon the exempted property of the debtor in the time of his adversity, and to suspend his right to proceed against that property for the satisfaction of his claim during the period of exemption. This constituted their chief, and, indeed, their only, aim and purpose, and it was never intended that this humane and beneficent provision of the organic law should be so interpreted as to take away from the owner of the right of exemption any part of his almost equally valuable right of alienation.
The framers of the Constitution meant exactly what they said and ordained--that a certain part of the real property of the debtor should be set apart for his use and occupation, where he might dwell with his family in peace and contentment, without any creditors to molest or make him afraid, so long as he might live, and to extend the benefit of the exemption to the wife during her life, if there should be no children of the marriage, and, if there were children, then during the minority of the children, or any one of them. The leading idea, if not the only one, was to create an exemption, and not an estate, and an exemption, too, for a limited period, leaving the estate which the debtor already had in the land unimpaired. We have said that no new estate was created, for we are told that an estate is the interest which the tenant has in his land, and no interest has been created here, but merely a right of exemption, or a privilege of protection against creditors; leaving the debtor at full liberty to deal with his estate at his own free will, provided he does not alien this right of exemption or interfere with its enjoyment without the consent of his wife, to be signified in the manner prescribed.
We find, therefore, that, as regards the property allotted for the purpose of exemption, the debtor acquires no new right interest, or estate in it, as he is supposed already to have the entire estate, but something collateral to it; and if this something, which we may call a right of exemption, or a determinable right of exemption, or a quality annexed to the land, whereby it is exempted, is preserved to him and his family intact, he may convey or transfer his estate or interest in the land, as he could do if this right did not exist, without infringing upon any provision of the Constitution. The land is his, and he holds it with all the rights and incidents of ownership, among which stands pre-eminent the right of alienation, as essential to his power and dominion over it; and the lawmakers could not have intended to put any restriction upon this right, for it would be against the policy of the law to do so, except in so far, and only in so far, as it might be necessary to protect the owner against his creditors. If he does not interfere with the right of exemption, why may he not do with his own as he pleases in all other respects, and why may he not sell and convey, without the joinder of his wife, all of his interest in that which it is not necessary for him to keep in order to secure to himself and his family the full enjoyment of this right of exemption? When it is admitted to be a mere determinable right of exemption, as we understand it is in the opinion of this court delivered at the last term, the result we have reached, and not the one stated by the court in that...
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